Brexit and IP - no need to panic - yet!

There has been plenty of coverage in the press of the potential impact of Brexit on the UK’s research base both in academia and through participation by commercial organisations in EU sponsored projects however what of the protection available for the output of that research however it may be funded or pursued down the line?

Well firstly and most importantly Brexit will not occur for at least two years and until then Britain remains a full member of the EU and the current rules apply.

With respect to patents these current rules should continue to apply even after Brexit as the European Patent Convention which currently governs matters is quite separate from the EU. Of more concern is what is to happen to the Unitary Patent which after what seems like a lifetime of negotiation is about to come into being. That is a creation of the EU and under the current rules cannot come into being until after the UK ratifies it. UK ratification in the current political climate seems highly unlikely which means there will inevitably be some delay in introducing the new regime. When the UK leaves the EU it becomes ineligible to participate which makes the whole project much less attractive not just to UK companies but to the wider commercial community. An ideal solution would be for the UK to remain a participant however that would need some renegotiation especially around the supremacy of EU law. If however a Brexited UK could be accommodated that would open the door surely for wider participation say by Switzerland and other non EU members and that would create an even more attractive offering. Such an accommodation however would need the agreement of all EU states and not just those who are participating in the Unitary Patent. Another consequence of the UK leaving the EU would be the siting of the Life Science and Chemical part of the central court system which was intended to be in the UK – where will that go now?

Many companies currently take advantage of the EU regimes for trademarks, plant varieties and registered designs. The UK government has said it will introduce general legislation that on the repeal of the European Communities Act will automatically convert existing EU laws into British domestic laws. This may allow for some immediate relief but it is likely that the UK IPO will find itself short of staff to deal with the inevitable increase in workload and there may be questions of enforceability of these “new” UK marks if use has largely been in other EU countries. It will be interesting to see what transitional regulations are devised or whether in the long terms some wider regime can be negotiated. What is pretty much certain is that moving forward applicants wanting to protect their marks or designs across the whole of what is currently EU territory face increased costs.

Some renegotiation and accommodation would also be required to continue the geographical indication regime.

Regardless of the option pursued it seems inevitable that after many years of legal convergence we will start to see IP law begin to diverge as the UK courts are no longer bound by the decisions of the European Court.